16. the international law of wildfires · jobname: breau page: 1 sess: 5 output: fri jun 10...

JOBNAME: Breau PAGE: 1 SESS: 5 OUTPUT: Fri Jun 10 12:08:15 2016

16. The international law of wildfiresMichael Eburn

Earlier chapters in this text have identified the ‘conceptual and legal framework’ ofdisaster law and the provisions that apply generally or to ‘all hazards’. Rather thanrepeat this work, this chapter will review international obligations with a specific focuson wildfire and firefighting.

1. WHAT IS A WILDFIRE?

The United Nations’ (UN) Food and Agricultural Organization (FAO) defines wildfireas any ‘unplanned and uncontrolled wildland fire which regardless of ignition sourcemay require suppression response, or other action according to agency policy’.1

Wildland fire is ‘[a]ny fire occurring on wildland regardless of ignition sources,damages or benefits. (May also include controlled fires).’2 ‘Wildland’ is defined as:

Vegetated and non-vegetated land in which development is essentially non-existent, exceptfor roads, railroads, powerlines, and similar transportation facilities; structures, if any, arewidely scattered. In fire management terminology this general term includes all burnablevegetation resources including managed forests and forest plantations.3

The FAO uses the term ‘wildfire’, stating that:

The term gaining acceptance within the fire community to encompass all of these types offire is wildland fire – but even that term does not portray the full meaning since a fire burningthrough cultural landscapes, rural agricultural areas, the rural urban interface fall[s] within thescope of the strategy [to Enhance International Cooperation on Fire Management].4

Apart from ‘wildfire’, different terms are also used depending on local practice and thefuel being burned; examples include bushfires, brush fires, forest fires and grass fires.Nothing of significance turns on these definitions, at least from the perspective ofinternational law. The essence of the various definitions is that a wildfire, whatever it iscalled, can be distinguished from an urban or structural fire such as a house or factoryfire. Even so, wildfires, wildland fires, bush fires, forest fires, grass fires and the like,

1 Food and Agriculture Organization of the United Nations (FAO), Fire managementglossary (online) <http://www.fao.org/forestry/firemanagement/87925/en/> accessed 28 August2015.

2 Ibid.3 Ibid.4 FAO, Strategy to Enhance International Cooperation in Fire Management <http://foris.

fao.org/static/pdf/fms/FMStrategy1une2008.pdf> accessed 28 August 2015.

336

Columns Design XML Ltd / Job: Breau-Research_handbook_on_disasters_and_international_law / Division: 16-chapter16 /Pg. Position: 1 / Date:2/6


can burn anything that is in their path, including buildings and other assets; theessential feature is that the fire’s primary fuel is vegetation. Wildfires are unplanned sothey may be ignited by lightning or they may have been deliberately lit either as adeliberate, destructive fire (arson), or for legitimate purposes, such as to reduce fuelhazards or to clear land for agriculture. They become a wildfire when they escape andrequire effort and resources to suppress or control the fire.

2. THE EXTENT AND NATURE OF THE HAZARD

It has been reported that wildfires affect about 3 per cent of the Earth’s vegetatedsurface each year.5 Fire is dependent upon fuel to burn and an ignition source, mostusually lightning.6 Predictions of global warming lead to predictions of an increase inwarmer weather but the impact on the likelihood of wildfire varies across the globe.7 Itis expected that ‘warmer, drier climates will increase fire activity in mesic landscapes,but reduce fire activity in landscapes that are more arid’.8

Wildfires can impact upon biodiversity in both terrestrial and aquatic environmentsas well as economic, social and socioeconomic assets and can, of course, lead tosignificant loss of human life.9 Like any hazard, a wildfire can overwhelm an affectedstate. After the fire the affected state may need assistance to support communities andrestore built and natural assets. In this way a wildfire is like any hazard. Issues of whena state should request assistance, whether states are obliged to seek, or offer assistance,how affected states should manage the influx of international assistance and ensure thataid is appropriately delivered will apply after a wildfire as they do after a storm, flood,earthquake or other disastrous event. Those issues are addressed in other chapters inthis volume and will not be discussed further here.

There are, however, three factors that distinguish wildfire from other hazards and thathave implications for international disaster law. First, although the direct impact ofwildfire is caused by flame and heat, a wildfire may also impact upon air quality.10 Theresult is that the impact of the fire may be felt well beyond the immediate impact ofthe flame and may affect neighbouring states even if they are not actually exposed tothe fire.11 Second, and only to a limited extent, a wildfire can be ‘fought’; that is withappropriate firefighting resources a fire may be controlled or, if the fire is too large to

5 S Doerr and C Santín, Wildfire: A Burning Issue for Insurers (Lloyds, 2013) 8.6 Ibid 6.7 M Scholze, W Knorr, NW Arnell and IC Prentice, ‘A Climate-change Risk Analysis for

World Ecosystems’ (2006) 103(35) PNAS 13116.8 KJ King, GJ Cary, RA Bradstock and JB Marsden-Smedley, ‘Contrasting Fire Responses

to Climate and Management: Insights from Two Australian Ecosystems’ (2013) 19 GlobalChange Biology 1223.

9 AM Gill, SL Stephens and GJ Cary, ‘The Worldwide “Wildfire” Problem’ (2013) 23(2)Ecological Applications 438.

10 Ibid.11 J Vidal, ‘Indonesia’s Forest Fire Smoke Blows Deeper into Malaysia’ The Guardian

(online, 25 June 2013) <http://www.theguardian.com/environment/2013/jun/24/indonesia-forest-fire-malaysia-singapore> accessed 9 February 2015; J Bietler, ‘Tracking Nature’s Contribution to

The international law of wildfires 337



control, assets may be protected. Third, the conditions in one country can have a directimpact upon the vulnerability of another; fuel load can carry a fire across nationalboundaries. This is different to a storm; a storm will destroy assets but once the stormhas formed, there are no resources that can divert the storm from its path. A storm canmove across national boundaries but there is nothing that anyone can do to stop it.

The particular features of wildfires mean that states may have a direct interest in howother states prepare for and respond to wildfires burning within their territory.

3. INTERNATIONAL COOPERATION IN PREPARING FOR ANDRESPONDING TO WILDFIRE

As other chapters in this volume identify, the key concerns of international disaster laware issues such as the initiation and termination of requests for assistance, the free entryof relief goods and equipment, the entry of relief personnel and recognition of theirqualifications, and the quality, accountability and coordination of responders.12 Theseproblems arise, in part, because much assistance is delivered by non-governmentorganizations and civil society. Countries that have been impacted by a disaster may nothave pre-planned the receipt of international assistance and may be overwhelmed byoffers of assistance from unknown NGOs. The developing field of international disasterlaw encourages states to ensure that they have in place arrangements to identify whenand from whom they will seek international assistance and put in place procedures tofacilitate the receipt of that assistance.

Issues of facilitating the entry of personnel and equipment, recognition of qualifica-tions and coordination with domestic agencies are also relevant during the response towildfire. What sets firefighting apart from post-disaster recovery is that firefightingservices are almost universally provided by governments. If there is to be internationalassistance to combat a wildfire, this will come from other governments, either throughtheir civil firefighting agency or occasionally a defence force. This can facilitateinternational cooperation first because agencies that are responsible for managing theresponse to a fire in their own territory are likely to have ongoing relationships with thefire service in neighbouring states. As a result, affected states will know from whomthey will seek assistance and will be able to readily identify members of the assistingagency. Second, as assistance will come from government agencies, issues of account-ability and responsibility are clear. Firefighting agencies are organs of the assistingstate and so the state is responsible and accountable for ensuring that their agencieswork with the affected state and deliver appropriate, requested assistance.

Even so, or perhaps because of this, there is no overarching international legalframework dealing with international cooperation in preparing for and responding to

Pollution’ NASA Earth Observatory (17 October 2006) <http://earthobservatory.nasa.gov/Features/ContributionPollution/> accessed 9 February 2015.

12 International Federation of Red Cross and Red Crescent Societies (IFRC), Guidelines forthe Domestic Facilitation and Regulation of International Disaster Relief and Initial RecoveryAssistance (2007); International Law Commission (ILC), Draft Articles on Protection of personsin the Event of Disasters, UN Doc. A/CN.4/L.831 (15 May 2014).

338 Research handbook on disasters and international law



wildfires. The discussion below demonstrates that, while international human rightsobligations are relevant, the bulk of relevant international law is found in UNdeclarations and soft law, as well as in bilateral agreements between nations that haveagreed to cooperate with respect to natural hazards generally, or wildfires in particular.

3.1 Multi-lateral Arrangements

3.1.1 Human rights conventionsThe International Covenant on Civil and Political Rights (ICCPR) states that everyonehas the right to life.13 The International Covenant on Economic, Social and CulturalRights (ICESCR) affirms a right to work in safe conditions,14 the right to socialsecurity,15 an obligation to protect the family,16 and confirms that it is ‘the right ofeveryone to [enjoy] an adequate standard of living for himself and his family, includingadequate food, clothing and housing’.17

A wildfire can have an impact upon these rights by causing death, dislocation, andthe destruction of homes and livelihoods. States have obligations to protect and advancethe rights of their citizens. In terms of the ICESCR that is an obligation to ‘take steps,individually and through international assistance’18 to allow the population to realizetheir rights. Under the ICCPR the parties have agreed ‘to ensure to all individualswithin its territory and subject to its jurisdiction the rights recognized in the presentCovenant’.19 It follows that a state will have an international obligation not only to takesteps to relieve the suffering of a population affected by wildland fire, but also, wherepossible, to take steps to control fire that is threatening homes, lives or importanteconomic assets such as agricultural areas.

3.1.2 UN Resolutions and statementsForests play an essential role in providing food and food security. The InternationalUnion of Forest Research Organizations reports that:

Close to one out of every six persons directly depends on forests, with food being oneessential aspect of this dependence. An even greater number rely on the ecosystem services offorests – notably soil and water protection and pollination – specifically for their food andnutrition. Forests and tree-based systems are particularly critical for food security andnutrition for the poorest and the most vulnerable, including women.20

13 International Covenant on Civil and Political Rights (opened for signature 16 December1966, entered into force 23 March 1976) (ICCPR) art 6.

14 International Covenant on Economic, Social and Cultural Rights (opened for signature16 December 1966, entered into force 3 January 1976) (ICESCR) art 7(ii)(b).

15 Ibid art 9.16 Ibid art 10.17 Ibid art 11.18 Ibid art 2(1).19 ICCPR art 2(1).20 B Vira, C Wildburger and S Mansourian (eds), Forests, Trees and Landscapes for Food

Security and Nutrition: A Global Assessment Report (International Union of Forest ResearchOrganizations 2015) 153.




The world community has committed specifically to protecting the world’s forests.21 Aspart of that commitment, the UN recommends that states should address ‘threats toforest health and vitality from natural disasters and human activities, including threatsfrom fire’.22

The UN General Assembly has confirmed the value of forests to current and futuregenerations. It says ‘[a]ppropriate measures should be taken to protect forests againstharmful effects of … fires … in order to maintain their full multiple value’.23 Asubsequent non-legally binding instrument on all types of forests invites members ofthe Collaborative Partnership on Forests to ‘[a]nalyse the causes of and address threatsto forest health and vitality from natural disasters and human activities, includingthreats from fire’.24

The impact of forest fires, excluding deliberate fires for deforestation purposes, onclimate change is unclear. It appears that there are both positive and negative impactsthat are assumed to cancel each other out.25 Even so, the signatories to the UNFramework Convention on Climate Change have committed themselves to, inter alia,promoting ‘sustainable management … conservation and enhancement’ of greenhousegas sinks and reservoirs ‘including biomass, forests and oceans as well as otherterrestrial, coastal and marine ecosystems’. All ecosystems can be affected by un-controlled wildfires which can damage existing ecosystems, release carbon fromburning into the atmosphere and, as noted above, impact upon both terrestrial andmarine systems.26

Whilst these various statements, goals and conventions have different legal standing,the overall conclusion is that the effective management of forest fires can help statesmeet their international obligations, support greenhouse gas sinks and advance theinterests, rights and lifestyles of those directly affected by forest fire. Although thesestatements are generally related to forest fire, the management of any wildland fire,regardless of its ignition source or fuel, will also be important to protect the livelihoodsof affected communities, as well as vital natural assets and human built assets that maybe affected by the fire.

21 Road map towards the implementation of the United Nations Millennium Declaration,UN Doc. A/56/326 (Report of the Secretary-General), 6 September 2001) 33.

22 Non-legally binding instrument on all types of forests, GA Res. 62/98 (31 January 2008)para 6.

23 Non-legally binding authoritative statement of principles for a global consensus on themanagement, conservation and sustainable development of all types of forests, UN Doc.A/CONF.151/26 (Vol. III) (Rep. of the United Nations (UN) Conference on Environment andDevelopment, 14 August 1992) Annex III para 2(b).

24 Non-legally binding instrument on all types of forests (n 22) para 6(o).25 DMJS Bowman, JK Balch, P Artaxo et al., ‘Fire in the Earth System’ (2009) 324 Science

481, 484; JT Randerson, H Liu, MG Flanner et al., ‘The Impact of Boreal Forest Fire on ClimateWarming’ (2006) 314 Science 1130.

26 United Nations Framework Convention on Climate Change (opened for signature 4 June1992, entered into force 21 March 1994) (UNFCCC) art 4(1)(d).




3.1.3 Food and Agriculture Organization of the United NationsWith increased interest in fire management, particularly with respect to forests, andrecognizing the need for international cooperation, the 2005 Food and AgricultureOrganization (FAO) Ministerial Meeting on Forests called upon the FAO to develop theStrategy to Enhance International Cooperation on Fire Management.27 This Strategy issupported by a Global Assessment of Fire and Fire Management,28 a Review ofInternational Cooperation in Fire Management29 and Voluntary Guidelines on FireManagement.30

The Review of International Cooperation31 identified areas where internationalcooperation would provide useful assistance for the world community. The Assessmentidentified four priority themes for international cooperation, namely:

+ Development of international standards, methods and systems for early warning,monitoring, impact assessment and reporting;

+ Training and technology transfer;+ Support to develop policy, legal, institutional and planning frameworks at both

national and regional level and the development of international agreements forcooperation in fire management, including mutual assistance in fire emergencies;and

+ Research.

The Fire Management Global Assessment recommended:

… that countries collaborate within and between regions, sharing knowledge and experiencesand developing reporting frameworks and regional policies related to fires. Regional networksshould be consolidated and strengthened and links developed with others, not only for theexchange of information, but also for training and regional fire plans.

Bilateral agreements should be promoted for joint fire suppression. In the field of cross-border firefighting, or where fire crews or expertise are shared, it is recommended thatcompatible approaches, such as the Incident Command System, are accepted as commonstandards and collaboration procedures developed.32

The Voluntary Guidelines aim to ‘establish principles in accordance with the relevantrules of international laws for responsible fire management activities’33 and sorepresent international consensus both on relevant law and best fire management

27 FAO, Strategy to Enhance International Cooperation on Fire Management <http://foris.fao.org/static/pdf/fms/FMStrategy1une2008.pdf> accessed 3 July 2015.

28 FAO, FAO Forestry Paper 151 Fire Management Global Assessment 2006 (FAO 2007)(FAO Forestry Paper 151).

29 FAO, Fire Management Working Paper 18: Fire Management: Review of InternationalCooperation (FAO 2006) (FAO Working Paper 18).

30 FAO, Fire Management Working Paper 17: Fire Management: Voluntary Guidelines(FAO 2006) (FAO Working Paper 17).

31 FAO Working Paper 18 (n 29) vii.32 FAO Forestry Paper 151 (n 28) 28–9.33 Ibid 3.




practice. Relevant to the international aspect of fire management is Principle 10:Cooperation, stating that:

Few nations and no single agencies or communities have the ability to manage everysituation. As fires routinely affect multiple jurisdictions, agencies should develop cooperativearrangements to mitigate transboundary impacts.

Aspects of the principle include but are not limited to:

encouraging the use of common terminology, systems and standards to enhance internationalcooperation;

+ promoting an ongoing exchange of knowledge, technology and resources to facilitaterapid international response to fires;

+ participating in international organizations, networks, fora and activities to enhancedomestic and international capacity and rapid international response;

+ using available guidelines and examples of successfully implemented agreements as aframework for the development of binding and non-binding international instruments.34

3.2 Conventions on Transboundary Pollution

One particular aspect of wildfires that set them apart from other disasters is the abilityof a fire in one state to affect another by the presence of smoke. The 1979 Conventionon Long-Range Transboundary Air Pollution defines ‘air pollution’ as ‘the introductionby man, directly or indirectly, of substances or energy into the air resulting indeleterious effects of such a nature as to endanger human health, harm living resourcesand ecosystems and material property and impair or interfere with amenities and otherlegitimate uses of the environment’.35

Arguably a fire started by lightning in a remote area of wildland does not involve theintroduction of pollutants ‘by man’, but failing to take steps to control fire, or a firecaused by infrastructure failure such as by failed electricity assets or poorly maintainedmachinery is, at least indirectly, caused ‘by man’. Pollution caused by fires that aredeliberately lit as a management tool, for example to clear land for agriculture, is adirect introduction of air pollutants.

Fires, in particular domestic wood and coal heating and open fires such as refuseburning, forest fires and after-crop burning, are identified in the 1998 Protocol onPersistent Organic Pollutants as a major stationary source of polycyclic aromatichydrocarbons (PAH).36 Parties to the Convention and the 1998 Protocol have commit-ted to reducing the amount of PAH by adopting best available techniques to controlemissions.37 With respect to wood fires, the Draft Guidance Document38 deals withresidential combustion (that is, wood and coal burning heaters and stoves) rather thanplanned or unplanned forest fires or other examples of wildfire. It follows that even

34 Ibid 23–4.35 Convention on Long-Range Transboundary Air Pollution (opened for signature 13

November 1979, entered into force 16 March 1983) art 1(a).36 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on

Persistent Organic Pollutants (opened for signature 24 June 1988, entered into force 23 October2003) Annex V para 8(b).

37 Ibid art 5.




though wildfires can have significant impacts upon neighbouring states via the spreadof smoke and particulates, this is not expressly regulated by the 1979 Convention, butthey have been picked up in regional cooperation.

The ASEAN Agreement on Transboundary Haze Pollution was finalized in responseto the impact of haze pollution caused by forest fires in 1997–1998.39 For the purposesof the ASEAN Agreement, ‘haze pollution’ means ‘smoke resulting from land and/orforest fire which causes deleterious effects of such a nature as to endanger humanhealth, harm living resources and ecosystems and material property and impair orinterfere with amenities and other legitimate uses of the environment’.40

The convention requires the parties to monitor the potential of transboundary hazepollution and take steps to mitigate the impact of any pollution. In particular, theConvention requires signatories to take steps to prevent,41 prepare for42 and respondto43 fires that may pose a threat to other signatories. The convention specificallyanticipates international cooperation to combat land or forest fires,44 and provides forhow a request for assistance is to be made and the obligations upon other signatorystates to consider and respond to any request.45 It then deals with issues of necessaryexemptions and the provision of facilities for responding states and the transit ofnecessary equipment and personnel.46 The convention also provides for scientific andtechnical cooperation between signatories to ensure compatible systems and training.47

3.3 General Principles in International Environmental Law

Even without specific conventions relating to wildfires there are general obligationsunder international environmental law that require states to work with their neighboursto mitigate transboundary hazards that could include both fire and smoke. In the TrailSmelter Case, the Arbitral Tribunal stated that ‘under the principles of international law… no State has the right to use or permit the use of its territory in such a manner as tocause injury by fumes in or to the territory of another or the properties or personstherein’.48

38 Economic Commission for Europe, Draft Guidance Document on Best Available Tech-niques to Control Emissions of Persistent Organic Pollutants from Major Stationary Sources, UNDoc. ECE/EB.AIR/2009/14 (9 October 2009).

39 Haze Action Online, ‘ASEAN Agreement on Transboundary Haze Pollution’ (2015)<http://haze.asean.org/aathp/> accessed 3 July 2015.

40 ASEAN Agreement on Transboundary Haze Pollution, ASEAN Legal Instruments 77(opened for signature 10 June 2002, entered into force 25 November 2003).

41 Ibid art 9.42 Ibid art 10.43 Ibid art 11.44 Ibid art 12.45 Ibid.46 Ibid arts 13, 14 and 15.47 Ibid arts 16 and 17.48 Trail Smelter Case (United States v Canada) Intl Arb. Rep. 1905 (Arbitral Trib., 11

March 1941), 1965 (emphasis added).




Similar sentiments are expressed in other statements of legal doctrine. The 1992 RioDeclaration on Environment and Development states that ‘States have … theresponsibility to ensure that activities within their jurisdiction or control do not causedamage to the environment of other States or of areas beyond the limits of nationaljurisdiction’.49

The International Law Commission’s (ILC) Draft Articles on Prevention of Trans-boundary Harm from Hazardous Activities say that states should ‘take all appropriatemeasures to prevent significant transboundary harm or at any event to minimize the riskthereof’.50 The draft articles also say that ‘States concerned shall cooperate in goodfaith and, as necessary, seek the assistance of one or more competent internationalorganizations in preventing significant transboundary harm or at any event in minimiz-ing the risk thereof’.51

States are also required to develop emergency plans and notify any other state likelyto be affected by an emergency occurring in the affected states’ jurisdiction. Theseobligations are relevant to wildfires as states can take measures to mitigate the risk offire and, by taking fire control measures, mitigate the risk of both fire and smokespreading and affecting the environment of other states.

4. BI-LATERAL ARRANGEMENTS

The provisions discussed above impose obligations upon states to respond to wildfires.However, most states will respond because it is in their own interest to mitigate the riskof fire and to attempt to control or at least manage fires that do start. It is equally thecase that neighbouring and friendly states will be willing to assist because it is in theirown interest to limit the spread of fire and smoke.

The FAO has developed an ‘International Wildland Fire Management AgreementsTemplate’.52 The Template is intended to alert states to ‘areas that need to beconsidered when … developing international cooperative agreements’.53 According tothe Template, cooperative firefighting agreements should deal with, as a minimum:

1. Parties to the agreement2. Purpose3. Definition of terms4. Expenses and costs, including how they will be calculated and whether the

sending or receiving state is to meet those costs5. Information and coordination

49 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (12August 1992) Annex I (Rio Declaration) principle 2; See also UNFCCC.

50 ILC, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,UN Doc. A/56/10 (Rep. of the ILC on the work of its fifty-third session, 2001) (Draft articles onPrevention of Transboundary Harm from Hazardous Activities) art 3.

51 Ibid art 4.52 T Frey and R Velez-Munoz, International Wildland Fire Management Agreements

Template: Forest Resources Development Service (Working Paper FFM/2/E, FAO 2003).53 Ibid.




6. Liabilities, claims and compensations7. Operating plans/operational guidelines8. Border crossings9. Link to Disaster Management Plan for the receiving country

10. General Provisions such as entry into force and duration of the agreement11. Standard operation procedures12. Other provisions – as required13. Participating countries/agencies/organizations signature page.54

The nature of wildfires suggests that the majority of relevant international agreementswill be bi-lateral in order to ensure cooperation between neighbouring states wherethere is a risk of fire spreading from one state to the next. Agreements to facilitateemergency response cooperation may be generic ‘all hazard’ agreements, for exampleagreements between Spain and France,55 Latvia and Russia,56 Finland and Russia,57

Lithuania and Poland,58 Argentina and Chile,59 and Portugal and Spain.60 Others, suchas the Agreement on Joint Control of Forest Fire between China and Russia (1995) andagreements between the United States of America and Mexico61 and Canada62 arespecifically directed to wildfire.

There are also cooperative agreements between states that do not share a commonland border. Some, such as the agreements between Austria and Albania,63 France and

54 Ibid.55 Agreement between the Government of the Kingdom of Spain and the Government of the

French Republic on emergency situations, civil protection and security (adopted 28 April 2009,entered into force 25 August 2012).

56 Agreement between the Ministry of the Interior of the Republic of Latvia and the Ministryof the Interior of the Russian Federation on mutual cooperation (adopted 28 August 1992,entered into force 28 August 1992).

57 Agreement by and between the Government of the Finnish Republic and the Governmentof the Russian Federation about Cooperation to avert disasters and to prevent their conse-quences (adopted 9 August 1994).

58 Treaty between the Republic of Lithuania and the Republic of Poland concerning theircommon State frontier, the legal relations in force and cooperation and mutual assistance infrontier matters (with protocol) (adopted 5 March 1996, entered into force 23 December 1998).

59 Agreement between the Republic of Argentina and the Republic of Chile on co-operationin case of catastrophes (entered into force by signature 8 August 1997).

60 Protocol between the Kingdom of Spain and the Republic of Portugal regarding technicalco-operation and mutual assistance about Civil Protection (entered into force by signature 2July 1993).

61 Wildfire Protection Agreement between the Department of Agriculture and the Depart-ment of the Interior of the United States of America and the Secretariat of Environment, NaturalResources and Fisheries of the United Mexican States (entered into force by signature 4 June1999).

62 Arrangement in the Form of an Exchange of Notes Between the Government of Canadaand the Government of the United States of America (entered into force by signature 7 May1982).

63 Agreement between the Republic of Austria and the Republic of Albania on mutualassistance in the case of disasters or serious accidents (adopted 27 January 2010, entered intoforce 1 July 2011).




Croatia,64 Germany and Hungary,65 Latvia and Azerbaijan,66 and Morocco and Spain,67

are ‘all hazards’ agreements so will include but are not specifically directed to wildfire.Others, such as agreements between Finland and Burkina Faso,68 British Columbia(Canada) and Ghana,69 and the United States of America and Australia70 and NewZealand71 are specifically about wildfire cooperation, even though, in the absence of acommon land border, there is no risk of fire spreading between these states.

Whether wildfires are the subject of the agreement or included as part of an ‘allhazards’ agreement, the treaties highlighted above (and no doubt others) generally dealwith issues identified in the FAO guidelines – in particular, how and when affectedstates will call for assistance and how the countries will cooperate with the exchange ofpersonnel and resources. For example, the United States has entered into a mutual aidagreement with Mexico. This agreement72 allows fire fighters and their equipment tocross the United States-Mexico border ‘in order to suppress wildfires’73 within tenmiles on either side of the border.74 The agreement provides for:

+ The initiation of assistance – ‘Each party shall immediately consider the requestof the other Party … for cross border movement of wildfire protections resources… and, to the fullest extent practicable, promptly approve such request’.75

64 Agreement Between the Government of the French Republic and the Government of theRepublic of Croatia on Assistance and Cooperation in the Area of Civil Protection and Security(entered into force 1 January 2009 by notification).

65 Agreement between the Government of the Federal Republic of Germany and theGovernment of the Republic of Hungary on mutual assistance in the event of disasters or seriousaccidents (adopted 9 June 1997, entered into force 11 September 1998).

66 Agreement between the Government of the Republic of Latvia and the Government of theRepublic of Azerbaijan on cooperation in the prevention and mitigation of emergency situations(adopted 17 January 2011, entered into force 2 August 2011).

67 Agreement on technical co-operation and mutual assistance about Civil Protection(adopted 21 January 1987, entered into force 28 December 1992).

68 Agreement between the Government of the Republic of Finland and the Government ofBurkina Faso regarding Finnish support to the management of bush fires (entered into forceOctober 1998).

69 Memorandum of Understanding between the Government of the Republic of Ghana andthe Government of the Province of British Columbia (adopted June 1999).

70 Wildfire Arrangement between the Department of the Interior and the Department ofAgriculture of the United States of America and the Australian Participating Agencies (enteredinto force by signature 9 September 2002).

71 Wildfire Arrangement between the Department of the Interior and the Department ofAgriculture of the United States of America and the New Zealand Participating Agencies(entered into force by signature 20 August 2002).

72 Wildfire Protection Agreement between the Department of Agriculture and the Depart-ment of the Interior of the United States of America and the Secretariat of Environment, NaturalResources and Fisheries of the United Mexican States (entered into force by signature 4 June1999).

73 Ibid art I.74 Ibid art II (Definitions – definition of ‘Zone of mutual assistance’).75 Ibid art III.




+ Costs and liability – ‘Each party shall assume all of its costs and expenses’76 andeach party waives any claim for loss or damage, including injury or death andagrees to bind any contractor or agent to also waive any claim against the otherParty. The waiver does not apply where the damage is caused by wilful orcriminal misconduct.77

+ Entry of personnel and equipment – allowing all supplies and equipment to enterthe territory of the other Party ‘without payment of any duties or taxes’.78

Details to give practical effect to this agreement are negotiated and set out in theAnnual Operating Plans.79 Guidelines for the development of the Operating Plans makeit clear that it is intended that a request to cross the border may be made to deal withfires that pose a risk to the assisting state, that is, Mexico may request permission tocross the border to fight a fire burning in the United States and which is posing a threatto Mexico, and vice versa. A request may also be made by a Party for assistance to dealwith a local threat, meaning that the United States may request Mexico to deployfirefighting resources to assist with a fire that is burning in the United States even ifthat fire is not posing a threat to Mexico, and vice versa.

A similar agreement exists between Canada and the United States.80 This agreementprovides that participating departments from each country may request assistance fromparticipating agencies from the other state. The country requesting assistance is to meetthe costs of the sending country, including compensation for loss or damage to propertyand for the death or injury of firefighters. The agreement is supplemented by an annualoperational plan that provides procedures for each country to request assistance andprocedures to facilitate the movement of fire fighters and firefighting resources acrossthe national border and details for cost recovery.81

Other countries with common land boundaries have also established agreements forcross-border cooperation that include assisting with the suppression of wildfires. Thesecontain more or less detail; for example the Agreement between the Ministry of InternalAffairs of the Republic of Latvia and the Ministry of Internal Affairs of the RussianFederation82 commits each state to ‘provide assistance to each other in responding tonatural disasters, major fires, accidents, and catastrophes’,83 but it does not detail howthat cooperation is to be provided.

The Treaty between the Republic of Lithuania and the Republic of Poland Concern-ing Their Common State Border, the Legal Relations in Force and Cooperation andMutual Assistance in Border Matters84 is much more detailed. The agreement provides

76 Ibid art IV.77 Ibid art V.78 Ibid art VI.79 Ibid art VII.80 Arrangement in the Form of an Exchange of Notes between the Government of Canada

and the Government of the United States of America (n 62).81 Canada/United States Reciprocal Forest Fire Fighting Arrangement; Operating Plan For

2015 (15 January 2015) para 4.1.82 Entered into force by signature 28 August 1992.83 Ibid art 12.84 Entered into force 23 December 1998.




that where there is a fire ‘in the vicinity of the State border’ the affected state isrequired to ‘make every effort within its power to localize and extinguish the fire and toprevent it from crossing’.85 They must also warn the other state party if there is a riskthat the fire will cross the border,86 and cooperate to contain the fire and stop its spreadacross the border.87

In the case of fire or other hazard in the border region, the agencies may requestassistance from the other state’s ‘corresponding agencies’88 and ‘units of the firebrigade … may cross the State border, at any point and at any time and stay in theterritory of the other Party for such a period of time as is necessary for providing theassistance’.89 The assisting agency may bring their equipment across the border butmust return it after the incident.90 As an example of humanitarian cooperation, theagreement allows the citizens of one state to cross the national border if their lives areat risk from fire or other hazard and then makes provision for their peaceful return oncethe threat has passed.91

The agreement between France and Spain92 commits the parties to sharing ‘un-classified’ information including specifics about the use of helicopters and fire retardantin the border area,93 and to allow personnel to take part in mutual training exercises andstaff exchange.94 The agreement does not, however, provide for actual operationalcooperation.

One well-practised example of international cooperation in fire management is thearrangements between the United States, Australia95 and New Zealand.96 An interestingaspect of these agreements is that they have not been negotiated at government level,but rather between national government agencies of the United States and NewZealand, and state government departments in Australia. These agreements provide forrequests for assistance to be made by agencies, with the requesting agency to meet thecosts of the assisting agency. Because government agencies, and particularly stategovernment agencies in Australia, do not control the national border, they cannotcommit to allowing tax or visa free entry. Accordingly, these agreements commit theparties to work with the relevant national agency to ‘facilitate entry to and exit from itsterritory of all personnel engaged in wildfire suppression’.

85 Ibid art 45(3).86 Ibid arts 15(2)(1) and 45(4).87 Ibid art 15(2)(1).88 Ibid art 27(1).89 Ibid art 27(2).90 Ibid art 27(3).91 Ibid art 28.92 Agreement between the Government of the Kingdom of Spain and the Government of the

French Republic on Emergency Situations, Civil Protection and Security (entered into force 25August 2012 by notification).

93 Ibid art 3(3)(1).94 Ibid art 3(3)(3).95 Wildfire Arrangement Between the Department of the Interior and the Department of

Agriculture of the United States of America and the Australian Participating Agencies (n 70).96 Wildfire Arrangement Between the Department of the Interior and the Department of

Agriculture of the United States of America and the New Zealand Participating Agencies (n 71).




Even though these agreements are at a lower than national government level, and theparties cannot bind their governments on issues of visas, customs and quarantine, thearrangements have proved to be very effective:

In 2000, over 500 individuals from Australia, New Zealand, Canada and Mexico assisted infighting wildfires. Although fire management personnel from the United States, New Zealandand Australia have exchanged research, training, and technology for years, the summer of2000 was the first time their firefighters fought fires on American soil.97

After that initial deployment, the USA has sent firefighters to Australia, and firefightersfrom both Australia and New Zealand have travelled to America to assist with fires onmany more occasions.98

5. COOPERATION AT LESS THAN TREATY STATUS

An example of innovative cooperation in the area of fire and emergency management,not limited to but including wildfires, involves Pacific Ocean island states, NewZealand and Australia. What began as an agreement between the member agencies ofthe Australian Fire and Emergency Services Authorities Council (AFAC) and theSecretariat of the Pacific Islands Commission (SOPAC) has grown into the PacificIslands Emergency Management Alliance. The members of the Alliance are the PacificIslands National Disaster Management Offices (NDMOs), the Pacific Islands Fire andEmergency Services Association (PIFESA), the Pacific Islands Chiefs of Police andmember agencies of AFAC.99 A key objective of the alliance is to increase the capacityof Pacific Island states to support each other during and after disaster events. Anexplicit measure of success is that disaster events will be managed with little or nointernational assistance.

Though this alliance is not specifically directed at wildfire, it has been driven by thefire services and there is active ‘twinning’ between Australian, New Zealand and pacificisland fire services, as shown in Table 16.1.

The various agreements between the fire services provide for cooperation in the areasof training and capacity development and the provision of equipment. They do notprovide for significant operational deployment during fires, but it is likely that suchassistance would be provided were it requested.100

97 National InterAgency Fire Centre, ‘International Support in Wildland Fire Suppression’<https://www.nifc.gov/fireInfo/fireInfo_international.html> accessed 3 July 2015.

98 Ibid.99 Pacific Islands Emergency Management Alliance, Information Sheet # 2, copy on file

with author.100 See, e.g., Draft Memorandum of Agreement between the South Australian Metropolitan

Fire Service and the Tonga Fire Service for a long-term partnership in matters relating to fireand other emergencies (2010), copy on file with author; Draft Collaboration Deed between theMetropolitan Fire and Emergency Services Board and Samoan Fire and Emergency ServicesAuthority (2009), copy on file with author.




Table 16.1 Twinning arrangements between AFAC and PIFESA member agencies asof February 2016

PIFSA Partner AFAC Partner

Cook Islands Airport Authority New Zealand Fire ServiceFiji National Fire Authority Country Fire Authority (Victoria)Nauru Nauru Rescue and Fire

ServiceTasmania Fire Service

Niue Niue Fire Service New Zealand Fire ServicePNG PNG Fire Service Queensland Fire and Emergency

ServiceSamoa Samoa Fire and Emergency

Service AuthorityMetropolitan Fire and EmergencyService Board (Victoria)

SolomonIslands

Fire Service RAMSI/ Fire and Rescue NSW

Tonga Tonga Fire Service Fire and Rescue NSWVanuatu Fire Service of Vanuatu ACT Emergency Services Agency

Source: J Edwards, ‘Pacific Islands Emergency Management Alliance Founding Partners’ – copy on filewith author.

As noted, these arrangements are not specifically directed at wildfire but are intendedto develop capacity across ‘all hazards’. Even so, they do represent developments atregional level and will play a significant part in allowing the Pacific Island states tomanage their risks, including the risk from wildfire.

6. UNILATERAL ACTION

The starting point of any discussion on the international deployment of firefightingresources is that, generally speaking, such deployment may only occur at the requestof, or at least with the consent of, the government of the affected state. Theinternational community has consistently reaffirmed the principle of state sovereigntyand that assistance should only be provided with the consent of, and at the request of,the affected state.101 The agreements discussed above confirm that cooperation infirefighting is a matter for national consent.

As noted earlier, however, one of the distinguishing features of wildfires are thatwhile they may burn across national boundaries, they may also be diverted or even

101 See, e.g., Strengthening the Effectiveness and Coordination of International UrbanSearch and Rescue Assistance, GA Res. 57/150 (27 February 2003); Strengthening of theCoordination of Humanitarian Emergency Assistance of the United Nations, GA Res. 29 46/182(19 December 1991); International Cooperation on Humanitarian Assistance in the Field ofNatural Disasters, From Relief to Development, GA Res. 56/103 (5 February 2002).




extinguished by the application of sufficient firefighting resources. A state, evenwithout a formal agreement, may want to send firefighting resources onto the territoryof its neighbour to take action to control or divert a fire before it impacts upon theirown territory. However, the sending of the state’s firefighting service into a neighbour-ing state, without the affected state’s consent, would be an internationally wrongfulact,102 as failing to respect the ‘territorial integrity’103 of a state is a breach of thefundamental principles of international law.104 Such an act would be appropriatelyattributed to the state as the state’s firefighting services would be considered an ‘organ’of the state.105 Even so, such action may be justified by the principle of necessity.

The ILC’s articles on necessity, adopted by the UN General Assembly,106 providethat a state’s internationally wrongful act is justified if it is the only way to safeguardan essential interest of the state and does not impair another state’s essential interest.107

The ILC Commentary states that:

On balance, State practice and judicial decisions support the view that necessity mayconstitute a circumstance precluding wrongfulness under certain very limited conditions …The cases show that necessity has been invoked … to protect a wide variety of interests,including safeguarding the environment, preserving the very existence of the State and itspeople in time of public emergency, or ensuring the safety of a civilian population.108

Brownlie refers to the principle that a state can take action within the territory ofanother state as a ‘special case of necessity’. He says:

Some instances may be considered in which serious danger to the territory of a state arisesotherwise than as a result of a use of armed force. Thus if state B controls the upper, and stateA the lower reaches of a river, and reservoirs on the territory of state B are threatened bynatural forces, or the territorial authorities negligently or wantonly loose quantities of water,causing a threat of floods to state A, the latter would seem to be justified in taking preventiveaction on the territory of state B. Such action should be immediately reported to the SecurityCouncil, its particular purpose made known to the government of state B, and the situationmust be such that previous complaint to the local authorities would not have provided anadequate or timely remedy.109

102 Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 (28 January2002, adopted 12 December 2001) Annex (Responsibility of States for Internationally WrongfulActs) art 2.

103 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October1945) art 2(4).

104 G Triggs, International Law: Contemporary Principles and Practices (2006 Butter-worths) 210.

105 Responsibility of States for Internationally Wrongful Acts (n 102) art 4.106 Ibid art 3.107 Ibid art 25.108 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with

commentaries, UN Doc. A/56/10 (Rep. of the ILC on the work of its fifty-third session, 2001)83.

109 I Brownlie, International Law and the Use of Force (OUP 1963) 376.




It is easy to see how a wildfire crossing a national border could represent a threat to theessential interests of the state at risk, but crossing into another state in order to combatthe fire may well impair that state’s essential interests, in particular its interest inmaintaining its own territorial integrity. As noted above, however, states have inter-national obligations to take steps to protect their neighbours from transboundaryhazards. Further, the ILC has reported that states have a duty to ‘cooperate in goodfaith’ and to ‘seek … assistance’ to prevent ‘significant transboundary harm’.110 If thisis correct, that is, if there is a duty to cooperate over a significant transboundary hazard(and a wildfire threatening to burn across the boundary must be a transboundaryhazard), it is easier to argue that there is no serious threat to that state’s essentialinterests by a state moving into their neighbour’s territory to deal with the threat. Thisis particularly true where the affected state is unable or unwilling to take steps to meetits international obligations to mitigate the threat.

In such extreme circumstances a state could be justified in deploying state-ownedfirefighting resources onto the territory of its neighbour in order to deal with a fire thatis threatening its own territory or population and which the affected state is eitherunable or unwilling to control.

7. ENHANCING COOPERATION

Even though preparing for and responding to wildfire is consistent with, if not requiredby, international standards and conventions, international cooperation in firefightingremains an area largely outside international law. As discussed above, the principalinternational instruments are bilateral agreements between neighbouring states andclose allies. Although there are no widely reported problems with internationalfirefighting cooperation, it is likely that firefighters will face similar problems to otherrescuers should they be asked to assist where bilateral treaties have not been establishedor where agencies have not trained together to develop common procedures andterminology. The FAO says that ‘[d]uring extreme fire situations, a country may beshort of fire suppression resources, including command and coordination personnel.Protocols, agreements and standardized command systems and methods would ensurethat countries delivering to, or receiving assistance from other countries can cooperateeffectively.’111

It would stand to reason that international firefighting efforts would be assisted withthe development of international standards on equipment, procedures, and coordinationand cooperation. The FAO has taken the lead in developing guidelines on firemanagement and encouraging international cooperation, but that is not the organ-ization’s key or core function and it is not in a position to facilitate operationalassistance. There are, however, examples of international bodies and agreements thatfacilitate cooperation and coordination in areas of civil defence and urban search and

110 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (n 50)art 4.

111 FAO Working Paper 18 (n 29) 22.




rescue, and these could be extended to enhance firefighting cooperation, a couple ofwhich are introduced below.

7.1 The International Civil Defence Organisation and the FrameworkConvention on Civil Defence Assistance

‘The International Civil Defence Organisation (ICDO) is an intergovernmental organ-ization whose objective is to contribute to the development by States of structures forensuring the protection and assistance of populations, and for safeguarding propertyand the environment in the face of natural and man-made disasters.’112 Civil defence isdefined by the first Additional Protocol to the Geneva Conventions relating to theProtection of Victims of International Armed Conflicts as:

the performance of some or all of the undermentioned humanitarian tasks intended to protectthe civilian population against the dangers, and to help it to recover from the immediateeffects, of hostilities or disasters and also to provide the conditions necessary for its survival.These tasks are:

…

(vii) fire-fighting …

(b) ‘civil defence organizations’ means those establishments and other units which areorganized or authorized by the competent authorities of a Party to the conflict toperform any of the tasks mentioned under sub-paragraph (a), and which are assignedand devoted exclusively to such tasks.113

Although the Geneva conventions and their protocols apply in armed conflict, it is thisdefinition that has been adopted by the ICDO. It follows that firefighting is a civildefence task and fire services are civil defence organizations.114 The ICDO is thecustodian of the Framework Convention on Civil Defence Assistance (Civil DefenceConvention).115 This convention was intended to fill a gap in international law as:

Conventions certainly exist concerning specific questions such as simplified customs’procedures but there is, however, no comprehensive legal instrument covering assistanceactivities … Consequently, given the need to reduce or even eliminate obstacles to effectiveinternational collaboration between States, the ICDO wished to offer them a universalframework better able to foster both mutual understanding between them and the solidaritywhich should bind Civil Defence Services.116

112 International Civil Defence Organisation, Constitution and Regulation (2015) <http://www.icdo.org/en/about-icdo/constitution-and-regulation> accessed on 28 August 2015.

113 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 art 61.

114 See also Framework Convention on Civil Defence Assistance (opened for signature 22May 2000, entered into force 23 September 2001) (Civil Defence Convention) art 1 (definitionof ‘Civil Defence Service’ and ‘Civil Defence Unit’).

115 Framework Convention on Civil Defence Assistance, 22 May 2000 Commentary,1 <http://www.icdo.org/files/1513/9318/8635/commentary-framework-convention.pdf> accessed28 August 2015.

116 Ibid 1–2.




The Civil Defence Convention commits signatories to only send assistance that isrequested by an affected state and to ‘simplify and reduce to a minimum theadministrative and customs’ formalities relating to the entry and stay of the CivilDefence Units’.117 The convention, however, provides no practical guidance, or bindingdirections, on how that should be done.

The ICDO is not an organization with wide international membership. It has 54member states drawn largely from the Middle East and Africa plus Russia, China,Mongolia, Kazakhstan and Kyrgyzstan. Europe, Oceania and the Americas are largelyunrepresented. Although the ICDO and the Framework Convention could facilitateinternational cooperation in firefighting, they are unlikely to be able to do so given thelimited membership and the lack of universal adoption of the Convention.

7.2 The International Search and Rescue Advisory Group

The closest analogy with international firefighting is international cooperation in urbansearch and rescue (USAR). USAR is the specialized rescue of people from ‘structuralcollapse due primarily to earthquake’.118 Recently, international USAR teams havebeen deployed to Japan following the Great East Japanese Earthquake and to NewZealand following the Christchurch earthquake, both in 2011.

The International Search and Rescue Advisory Group (INSARAG) operates as partof the United Nation’s Office for the Coordination of Humanitarian Affairs (OCHA)119

and is supported by a UN General Assembly Resolution on ‘Strengthening theEffectiveness and Coordination of International USAR Assistance’. The Resolution:

Urges all States, consistent with their applicable measures relating to public safety andnational security, to simplify or reduce, as appropriate, the customs and administrativeprocedures related to the entry, transit, stay and exit of international urban search and rescueteams and their equipment and materials … particularly concerning visas for the rescuers andthe quarantining of their animals, the utilization of air space and the import of search andrescue and technical communications equipment, necessary drugs and other relevantmaterials.120

Apart from the passage of this resolution, the INSARAG lists the following achieve-ments:

+ The development of INSARAG Guidelines and methodology for USAR opera-tions to ensure standardized training and structures of international USAR teams.

+ The development of an INSARAG External Classification (IEC) system and IECGuidelines.

+ The development of the methodology for the establishment of a Reception/

117 Civil Defence Convention (n 114) art 3.118 International Search and Rescue Advisory Group (INSARAG), Background <http://

www.insarag.org/en/about/background.html> accessed 28 August 2015.119 Ibid.120 Strengthening the effectiveness and coordination of international urban search and

rescue assistance, GA Res. 57/150 (16 December 2002) art 3.




Departure Centre at the entry points into the affected country to better coordinateteam assignment and logistics support on site.

+ The development of a concept for rapid disaster assessment and coordination (theUN Disaster Assessment and Coordination (UNDAC) concept).

+ The development of the concept of an On-Site Operations Coordination Centre(OSOCC) in sudden-onset disasters in general, not only for earthquakes.

+ The establishment of a ‘Virtual OSOCC’ on the Internet for real-time informationexchange during ongoing emergencies among involved disaster managers.121

The INSARAG has three regional groups working to:

encourage the participation of all countries in their region and aim to provide a forum todiscuss USAR related issues, regional cooperation and capacity building. One of the primaryoutcomes of these meetings is an annual regional work plan that addresses capacity building,training and other issues relevant to integrated approaches to disaster response.122

Critically many USAR teams are provided by the state fire services. Fire services thatare familiar with the INSARAG processes and relationships could use them to furtherthe development of cooperative firefighting arrangements. The INSARAG regionalgroups could play a similar role with respect to firefighting and be an effective way toenhance regional cooperation and capacity building.

The INSARAG sets standards for international USAR teams. This means that anaffected country can be confident that a USAR team endorsed by INSARAG will becompetent and equipped to perform its assigned tasks and will be ready, willing andable to coordinate with local emergency managers. Developing similar standards forfirefighting teams would allow affected states to receive assistance with confidence.

It follows that INSARAG could be ideally placed to expand its mandate to includefirefighting and wildfire firefighting in particular. Many of the INSARAG achievementsin training, coordination, procedures for the reception and departure of assistingagencies rapid disaster assessment and coordination with the UN would all be ofcritical assistance in facilitating firefighting assistance. Further, the fact that USARteams are largely drawn from fire brigades123 would facilitate the development of thatextended mandate.

8. CONCLUSION

This book is an exploration of disasters and international law. Other chapters haveexplored overarching themes regarding the obligations of states to offer, and to accept

121 INSARAG, Achievements <http://www.insarag.org/en/about/achievements.html> accessedon 28 August 2015.

122 INSARAG, Regional Groups <http://www.insarag.org/en/regional-groups/regionalgroups-leftmenu.html> accessed 28 August 2015. The regional groups are Africa, Europe and the MiddleEast, the Americas and the Asia-Pacific.

123 INSARAG, USAR Directory <http://www.insarag.org/en/directory/usar-directory.html>accessed 28 August 2015.




offers of, assistance to prepare for and mitigate the impact of disasters. This chapter haslooked at international law with respect to the specific hazard of wildfire. What setswildfire apart from other hazards is the long reach of the hazard via smoke or hazepollution, and that, with the application of resources, a burning fire can be ‘fought’. Forlarge fires no amount of firefighting resources will extinguish the fire, but resourcesmay be used to protect assets and mitigate the impact of the fire. These factors makecooperation with firefighting and fire management particularly important, as suchcooperation can help mitigate the impact of fire and reduce the transboundary hazards.

The analysis of international law began by looking at overarching, universalobligations such as human rights obligations before considering convention obligations.Conventions range from wide-ranging multi-party agreements to protect forests andmitigate the risk of transboundary hazards, to regional agreements, bi-lateral agree-ments and then examples of local, inter-agency cooperation. Most of the conventions,declarations and principles discussed, however, are not specifically directed to wildfireor are not legally binding, and so they do not impose clear, unambiguous obligationsupon states with respect to wildfire. Even so, it can be seen that taking proactivemeasures to reduce the risk of fire and to manage fire effectively may assist a state inmeeting its international commitments to advance both human and environmentalwelfare and to protect internationally recognized human rights.

Even in the absence of treaty obligations it was argued that the international legalprinciple of necessity could justify unilateral action by one state in the territory ofanother if that were necessary to protect the intervening state from a significant wildfirethreat and the other state was unable or unwilling to take action to meet its obligationsto mitigate the risk. There is no doubt that such action is unlikely, and priorpreparation, in the form of a negotiated cross-border agreement or internationalstandards on firefighting cooperation, would be a more effective and satisfactory way toaddress risks posed by potential transboundary wildfires.

To that end this chapter considered international arrangements to facilitate firefight-ing cooperation. Although the FAO has been a leading agent in encouraging inter-national cooperation on fire management, it may not be the most suitable organizationto facilitate international firefighting operations, as such operations instead need to bemanaged by national agencies in cooperation with their counterparts from assistingstates. Australia has demonstrated effective international firefighting cooperation in itsarrangements with the United States, New Zealand and the Pacific Island states.

Essential to such cooperation are ‘[p]rotocols, agreements and standardized com-mand systems and methods [to] ensure that countries delivering to, or receivingassistance from other countries can cooperate effectively’.124 The International CivilDefence Organisation and the International Search and Rescue Advisory Group(INSARAG) were identified as groups that could play a significant role in enhancinginternational wildfire firefighting cooperation. It was argued that the INSARAG, giventhe close relationship between USAR and firefighting agencies, would be an appropri-ate agency to facilitate interagency and international cooperation with respect towildfire firefighting.

124 FAO Working Paper 17 (n 30) 22.




SELECT BIBLIOGRAPHY

Bietler J, ‘Tracking Nature’s Contribution to Pollution’ NASA Earth Observatory (17 October 2006)<http://earthobservatory.nasa.gov/Features/ContributionPollution/>.

Bowman DMJS, Balch, JK, Artaxo P et al., ‘Fire in the Earth System’ (2009) 324 Science 481.Brownlie I, International Law and the Use of Force (OUP, 1963).Doerr S and Santín C, Wildfire: A Burning Issue for Insurers (Lloyds, 2013).FAO, FAO Forestry Paper 151 Fire Management Global Assessment 2006 (FAO, 2007).FAO, Fire Management Glossary (online) <http://www.fao.org/forestry/firemanagement/87925/en/>FAO, Fire Management Working Paper 17: Fire Management: Voluntary Guidelines (FAO, 2006).FAO, Fire Management Working Paper 18: Fire Management: Review of International Cooperation (FAO,

2006).FAO, Strategy to Enhance International Cooperation on Fire Management <http://foris.fao.org/static/pdf/

fms/FMStrategy1une2008.pdf>.Frey T and Velez-Munoz R, International Wildland Fire Management Agreements Template: Forest

Resources Development (Working Paper FFM/2/E, FAO, 2003).Gill AM, Stephens SL and Cary GJ, ‘The Worldwide “Wildfire” Problem’ (2013) 23(2) Ecological

Applications 438.IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial

Recovery Assistance (2007).King KJ, Cary GJ, Bradstock RA and Marsden-Smedley JB, ‘Contrasting Fire Responses to Climate and

Management: Insights from Two Australian Ecosystems’ (2013) 19 Global Change Biology 1223.National Wildfire Coordinating Group, Glossary of Wildland Fire Terminology (October 2014).Randelzhofer A, ‘Commentary on Art 2(4)’ in Simma B (ed), The Charter of the United Nations: A

Commentary (2nd edn, OUP, 2002).Randerson JT, Liu H, Flanner MG et al., ‘The Impact of Boreal Forest Fire on Climate Warming’ (2006)

314 Science 1130.Scholze M, Knorr W, Arnell NW and Prentice IC, ‘A Climate-change Risk Analysis for World Ecosystems’

(2006) 103(35) PNAS 13116.Simma B, ‘NATO, the UN and the Use of Force; Legal Aspects’ (1999) 10 EJIL 1.Triggs G, International Law: Contemporary Principles and Practices (Butterworths, 2006).Vidal J, ‘Indonesia’s Forest Fire Smoke Blows Deeper into Malaysia’ The Guardian (online), 25 June 2013

<http://www.theguardian.com/environment/2013/jun/24/indonesia-forest-fire-malaysia-singapore>.Vira B, Wildburger C and Mansourian S (eds) Forests, Trees and Landscapes for Food Security and

Nutrition: A Global Assessment Report (International Union of Forest Research Organizations 2015).

Case

Trail Smelter Case (United States v Canada) Intl Arb. Rep. 1905 (Decision, 11 March 1941).



16. the international law of wildfires · jobname: breau page: 1 sess: 5 output: fri jun 10...

Documents